Preferential treatment for parents in relation to redundancy during maternity and shared parental leave – What is a “suitable available vacancy”?
In a relatively rare case on Regulation 10 of the Maternity and Parental Leave Regulations 1999 the Employment Appeal Tribunal (Hunter -v- Carnival plc) has considered a long debated question of whether a woman on maternity leave during a redundancy exercise involving a group of people doing the same type of work, in this case 21 team leader positions being reduced to 16, should enjoy special protection and take priority over other affected employees effectively competing for the remaining posts in what was essentially a selection from a pool.
The claimant was selected for dismissal by reason of redundancy and alleged unfair dismissal and maternity discrimination. The employment tribunal at first instance found that the 16 roles constituted “suitable alternative vacancies”. On appeal the Employment Appeal Tribunal overturned the decision finding that there was not an available ‘vacancy’. By the time the claimant was selected for redundancy there was no (available) vacancy because the remaining 16 roles were not ‘vacant’.
Expert comment
This is a helpful decision which distinguishes between a situation such as this in which a selection from a pool of employees doing the same type of work resulting in a reduced number of posts, from cases where two roles are being combined into one different role, when there would be a vacancy in the terms of regulation 10.
As far as we can see from the Employment Rights Bill none of the Government’s proposed enhanced protection for people during or after maternity leave affect this long established, important regulation 10 rule.
